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Dec. 21, 2020

U.S. EEOC Issues Guidelines on COVID-19 Vaccinations

By Mitch Boyarsky, Robert O. Sheridan

We recently provided analysis and practical guidance on mandatory vaccination policies, accommodations, and other considerations for employers as vaccines roll out across the country.  The U.S. Equal Employment Opportunity Commission (EEOC) subsequently issued preliminary guidelines for employers on COVID-19 vaccination policies in their updated Technical Assistance Questions and Answers on COVID-19 and various EEO laws.[1] 

Here are our key takeaways from these guidelines: 

Mandatory Vaccinations Are Not a Medical Examination Subject to the ADA, But Pre-Vaccination Screening Questions Can Be

The EEOC drew a distinction between the administration of vaccines by an employer or a third-party contractor and any pre-vaccination screening questions.  Notably, the EEOC determined that vaccine administration is not a medical examination or other disability-related inquiry that would trigger obligations under the Americans with Disabilities Act (ADA).  Similarly, requiring employees to show proof of vaccination (e.g., their vaccination card) does not impose ADA-related risks on the employer.  The EEOC reasoned that “many reasons … may explain why an employee has not been vaccinated” and so requesting proof of vaccination is not, itself, a disability-related inquiry.   

By contrast, the CDC-recommended pre-vaccination screening questions do trigger ADA obligations when asked by the employer or the employer’s contractor.  But when (1) an employer’s vaccination policy is voluntary and the employee’s decision to answer pre-screening questions is also voluntary or (2) an independent third party such as a pharmacy administers the vaccination, then the questions are not disability-related inquiries by the employer and so are not covered by the ADA. 

One potential implication of this rule is that employers do not run afoul of the ADA by merely requiring proof of vaccination as a condition for returning to the worksite.  Sending employees to third-party vaccination sites would further reduce the risk of an ADA or similar state law claim based on an employer’s mandatory vaccination policy. 

Other Takeaways 

Vaccine Refusal May Warrant Exclusion from the Workplace

First, consistent with prior guidance, the EEOC reaffirmed that the risk of COVID-19 meets the direct threat standard.  And, in its discussion of direct threat, the EEOC seemingly accepted the premise that vaccination will either be only a temporary solution or offer only a reduction in (rather than elimination of) risk of harm.  Thus, an employer can appropriately determine that an unvaccinated worker poses a direct threat because of the risk of exposing vaccinated workers to the virus. [2]  After such a determination, the employer may exclude the unvaccinated worker from the worksite.  However, the EEOC cautions that employers should not automatically terminate the employment of the worker in question but rather should evaluate possible accommodations such as teleworking.  Documentation of the interactive process to consider such an accommodation is important.  Given Dr. Fauci’s estimates that the United States could return to normal by fall of 2021, an indefinite unpaid leave might constitute a reasonable accommodation (e.g., in California) in the absence of any other alternative to employment termination.

Existing Screening Questions Do Not Implicate GINA

Second, the EEOC also clarified that the COVID-19 vaccines do not currently implicate Genetic Information Nondiscrimination Act (GINA).  Vaccines using mRNA do not interact with DNA at all and so do not fall within GINA’s regulation of the acquisition, disclosure, or use for employment decisions of genetic information.  At present, the pre-vaccination screening questions do not implicate GINA because they do not involve genetic information.

As both medical and regulatory guidance continues to evolve, employers should consult with their attorneys at Nelson Mullins to evaluate and advise on appropriate policies.


[1] U.S. E.E.O.C., What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, (Dec. 16, 2020), https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.

[2] Employers must determine that the worker poses a direct threat based on an individualized assessment.  Direct threat means a significant risk of substantial harm to the individual or others in the workplace that cannot be eliminated or reduced by reasonable accommodation (and absent undue hardship).  In evaluating direct threat, employers should consider four factors: (i) the duration of the risk; (ii) the nature and severity of the potential harm; (iii) the likelihood that the potential harm will occur; and (iv) the imminence of the potential harm.